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UNTERPERTINGER CASE

Doc ref: 9120/80 • ECHR ID: 001-55464

Document date: January 18, 1989

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UNTERPERTINGER CASE

Doc ref: 9120/80 • ECHR ID: 001-55464

Document date: January 18, 1989

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54 (art. 54)

of the Convention for the Protection of Human Rights and Fundamental

Freedoms (hereinafter referred to as "the convention"),

Having regard to the judgment of the European Court of Human

Rights in the Unterpertinger case, delivered on 24 November 1986 and

transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application against the

Republic of Austria lodged with the European Commission of Human

Rights on 1 September 1980 under Article 25 (art. 25) of the

convention by Mr Alois Unterpertinger, an Austrian citizen, who

claimed that he had been convicted on the basis of testimony, namely

statements made to the police by his former wife and stepdaughter, in

respect of which his defence rights had been appreciably restricted,

alleging the violation of paragraphs 1 and 3.d of Article 6 (art. 6-1,

art. 6-3-d) of the convention;

Recalling that the case was brought before the Court by the

Commission and by the Government of Austria on 14 March and

30 April 1985 respectively;

Whereas in its judgment of 24 November 1986 the Court unanimously

held:

- that there had been a violation of Article 6 (art. 6) of the

convention;

- that the respondent state was to pay to the applicant, as just

satisfaction, 161 578 Austrian schillings and 15 groschen, less

5 470 French francs and 50 centimes;

Having regard to the Rules adopted by the Committee of Ministers

concerning the application of Article 54 (art. 54) of the convention;

Having invited the Government of Austria to inform it of the measures

which had been taken in consequence of the judgment, having regard to

its obligation under Article 53 (art. 53) of the convention to abide

by it;

Whereas, during the examination of the case by the Committee of

Ministers, the Government of Austria gave the Committee information

about the measures taken in consequence of the judgment, which

information appears in the appendix to this resolution,

Declares, after having taken note of the information supplied by the

Government of Austria, that it has exercised its functions under

Article 54 (art. 54) of the convention in this case.

Appendix to Resolution DH (89) 2

Information provided by the Government of Austria

during the examination of the Unterpertinger case before

the Committee of Ministers

On 21 July 1987, the Austrian Supreme Court of Justice, seized by the

Attorney General with a plea of nullity for safeguarding the law under

Article 33, paragraph 2, of the Austrian Code of Criminal Procedure,

quashed on the ground of unlawful refusal to admit supplementary

evidence the judgment of the Innsbruck Court of Appeal of 4 June 1980,

by which the latter had dismissed the applicant's appeal against his

conviction by the Innsbruck Regional Court on 10 March 1980. The

supplementary evidence the admission of which was unlawfully refused

concerned in particular the credibility of the applicant's former wife

and stepdaughter, who had declined to give evidence in court. The

Supreme Court's judgment was given in the light of the judgment of the

European Court of Human Rights of 24 November 1986.

As a result of the Supreme Court's judgment, the case was referred

back to the Innsbruck Court of Appeal for re-examination and decision.

The Court of Appeal gave judgment on 13 January 1988, quashing the

applicant's conviction of 10 March 1980 and acquitting him on the

ground of lack of evidence of his guilt. Following this judgment, the

Court of Appeal also stated, in a decision of 13 January 1988, that

the applicant was entitled to just satisfaction for the material loss

entailed by his conviction of 10 March 1980.

With reference to the sum of 161 578 Austrian schillings and

15 groschen, less 5 470 French francs and 50 centimes, which the

European Court of Human Rights stated Austria was to pay to the

applicant, the sum of 47 797 Austrian schillings and 57 groschen has

been paid to the applicant's lawyer. As regards the remaining amount

of 102 484 Austrian schillings, the competent domestic court

authorised its attachment with a view to satisfying maintenance

payments owed by the applicant in respect of his son.

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